Wednesday, April 13, 2011

Adar v. Smith continued...why two gay dads still have no birth certificate for their son

When Oren Adar and Mickey Smith sued the state of Louisiana in federal district court, they claimed that the state registrar violated their constitutional rights by refusing to issue a birth certificate for their child listing both of them as parents. The US Constitution requires each state to give "full faith and credit" to the judgments of the courts of other states. So Adar and Smith claimed that Louisiana's refusal to create an amended birth certificate accurately representing their status as adoptive parents was a violation of the Full Faith and Credit clause.

When the Fifth Circuit ruled against them yesterday, it held that no such suit could be filed in federal district court. The Full Faith and Credit clause, the court ruled, requires Louisiana state courts to respect the adoption decree. According to this reasoning, the couple should have brought suit in Louisiana state court and if they lost there the only recourse would be asking the US Supreme Court to hear the case. According to the majority, the couple simply cannot sue the state in federal court for violating their right to receive Full Faith and Credit for their New York adoption decree.

The majority acknowledges that the 10th Circuit ruled otherwise, but here is how they distinguish that case. Oklahoma had a statute refusing to recognize out-of-state adoptions by same-sex couples. Louisiana, according to the court, not only has no such statute but admits that its courts must recognize Adar and Smith as the parents of their child. The court would have us believe that refusing to issue a birth certificate is not a failure to recognize the couple's parentage but is simply a refusal to enforce that parentage in a particular way. And the court notes that the state is willing to issue a new birth certificate in light of the New York adoption decree, but only by listing the name of one of the fathers as a parent.

There is a very strong five-judge dissent in the case, often using hyperbole and exclamation points to convey the depth of its rejection of the majority's reasoning. To the state's argument that it is willing to provide a new birth certificate with one father's name (an offer the dissent calls "Solomonesque"), the dissent notes, "I have searched the Constitution in vain for a 'Half Faith and Credit Clause.'" The dissent concludes that the couple is able to file a federal civil rights claim and that the state has indeed violated their right to have full faith and credit accorded their New York adoption.

According to the dissent, FF and C could not require Louisiana to issue new birth certificates at all for children after they are adopted. But since they have chosen to do so, Adar and Smith have a right to have their adoption treated the same way as all out of state adoptions. The dissent relies on the state statute that says the vital records registrar shall issue new birth certificates. The only thing unsettling about this reasoning is that it suggests a different analysis would apply if Louisiana had -- like Texas -- a statute explicitly forbidding issuance of a new birth certificate to unmarried adoptive parents. Then, presumably, there would only be an equal protection claim.

And speaking of the equal protection claim, which I discussed yesterday, the dissent and two of the concurring judges thought the en banc court should not have ruled on that issue because neither the district court ruling nor the panel ruling of the 5th Circuit addressed it. Nonetheless, the dissent has an interesting take on how the equal protection claim should be analyzed. The dissent believes the appropriate comparator group is unmmarriedbiological parents rather than married adoptive parents. Since Louisiana issues birth certificates with the names of two unmarried biological parents, the dissent asserts, it cannot justify denying a birth certificate to unmarried adoptive parents. Interesting twist. The dissent also points out that the birth certificate laws are about containing accurate and complete information and that the state's ban on adoption by an unmarried couple is in no way affected by requiring the state to issue an accurate birth certificate for this child.

Lambda Legal is considering whether to ask the US Supreme Court to review this en banc decision.

About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.